Ted Olson: At time of discord in US, 'Loving' film reminds us of the kind of people we aspire to be in America
Olson: It's the true story of an interracial couple's determination, with their lawyers, to overturn institutionalized racism
Editor’s Note: Theodore B. Olson is a Partner in Gibson, Dunn & Crutcher’s Washington, D.C. office and served as U.S. Solicitor General during the presidency of George W. Bush. One of the nation’s premier appellate and United States Supreme Court advocates, he argued 62 cases in the Supreme Court, including Hollingsworth v. Perry, the case upholding the overturning of California’s Proposition 8, banning same-sex marriages. The opinions expressed in this commentary are solely those of the author.
At a time of intense division and acrimony in this country, we need to be reminded of what we stand for, what unites us, and the kind of people we aspire to be. That very inspiration comes to us in a timely movie that tells a true story of love, grit and determination by a single, lonely couple who, along with their courageous lawyers, convinced the US Supreme Court to overturn decades of institutionalized racism and hate.
Just 50 years ago next spring, the Supreme Court, in Loving v. Virginia, struck down as unconstitutional the laws of Virginia and 15 other states prohibiting interracial marriage. During the 15 years prior to the Court’s decision, 14 other states had repealed or overturned such laws. It is disheartening to think that as recently as the end of World War II, three-fifths of our states had prohibited marriage between persons of different races.
Virginia’s laws made it a felony for people of different races to marry, or to live in Virginia after having married elsewhere, punishing violators with a prison term of up to five years.
The parties to the Loving case, Mildred Jeter, a black woman, and Richard Loving, a white man, had married lawfully in the District of Columbia in 1958 and returned to their home community in Virginia to live and work near family and friends. They were arrested, handcuffed, jailed and convicted of violating Virginia’s anti-miscegenation laws.
The judge suspended the jail sentence on the condition that the Lovings leave Virginia and not return together for 25 years. “The fact that [God] separated the races [and placed them on separate continents],” he said, “shows that he did not intend for the races to mix.”
The Lovings tried moving back to the District of Columbia. But that meant raising their children in a city, far from their families and friends, and the beautiful Virginia countryside they had known as home for their entire lives. So they returned to Virginia, the home of Thomas Jefferson, George Washington, John Marshall, Patrick Henry, and James Madison, only to encounter again the ugly face of hatred, discrimination and the prospect of years in prison.
With the help of civil rights lawyers, including from the American Civil Liberties Union, the Lovings attempted repeatedly to overturn Virginia’s law, fighting judicial precedents going back as far as the 1896 US Supreme Court decision in Plessy v. Ferguson, which had upheld separate “but equal” public schools, an opinion unanimously overturned by the Brown v. Board of Education court in 1954. All to no avail. Virginia’s highest court ultimately rejected their challenge citing an earlier decision by that court referring to the importance of the “preservation of racial integrity” and the “divine natural law,” which forbids the “corruption of races.”
Despite the years of pain, uncertainty, fright, and state-sponsored hostility, the Lovings did not give up, and nine years after their marriage, their case made its way to the United States Supreme Court. So agonizing was the process that the Lovings could not bear to attend the arguments by their lawyers in court. Richard poignantly told his lawyers to “tell the judges I love my wife.”
The Justices must have heard him. The unanimous opinion by Chief Justice Warren held that Virginia’s miscegenation statutes rested solely upon distinctions drawn according to race, and were therefore “odious to a free people whose institutions are founded upon the doctrine of equality.” Finding that “marriage is one of the basic civil rights of man,” the court found that denial of that right based upon racial classifications violated the principles of equality and due process guaranteed by the Fourteenth Amendment to the Constitution.
The Lovings were finally free, their marriage finally recognized as their fundamental right, and they were free at last to raise their children as full and equal Americans.
The story of the Lovings’ long ordeal, their stubborn fight for their right to marry, their pain, and ultimately, their joy, is told with passion, sensitivity, and empathy in the film, “Loving,” directed by Jeff Nichols, and starring Ruth Negga as Mildred and Joel Edgerton as Richard Loving. It is inspirational and uplifting. The power of love, and the ultimate majesty of our constitutional ideals are reaffirmed brilliantly. Everyone should see this movie; our children must see it.
The politics of the moment, particularly during a bitter, acrid presidential election, can be so corrosive, and the focus on the immediate advantage to one set of persons or issues so intense, that we can easily lose sight and sense of what this nation means and what kind of people we are—and hope to be.
Seeing what Richard and Mildred Loving meant to one another, and how hard and long they fought for their freedom and equality is precisely what we need this holiday season as an antidote to the dispiriting and debasing poison that we have been through these past brutal months.